Supreme Court New South Wales Medium Neutral Citation: R v Huynh [2023] NSWSC 920 Hearing dates: 7 August 2023 Date of orders: 7 August 2023 Decision date: 07 August 2023 Jurisdiction: Common Law Before: Campbell J Decision: (1) In relation to the charge of murder contained in the indictment, direct entry of a special verdict of the act of fatally stabbing Quoc Dung Bui is proven, but Thi Bich Huynh is not criminally responsible; (2) Dispense with the jury summoned for the trial; (3) Under s 34 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), Thi Bich Huynh is referred to the Mental Health Review Tribunal; (4) Under s 33(1)(b) of the said Act, order that Thi Bich Huynh is to be detained at such place and in such manner as the Mental Health Review Tribunal determines until her release by due process of law; (5) Direct: (a) The Registrar to notify the Minister for Health, as soon as practicable of the making of these orders; (b) The Registrar is to notify the Mental Health Review Tribunal, as soon as practicable of the making of these orders and is to provide to that tribunal the following documentation: (i) a copy of the Court's reasons for verdict and for making these orders; (ii) copies of Exhibit A (1–5). Catchwords: CRIME — mental health and cognitive impairment defence — defendant and prosecutor agree as to establishment of the defence — murder of husband — deceased perpetrator of domestic violence against the defendant and her children — diagnoses of Major Depression and Post Traumatic Stress Disorder — no real difference between experts' diagnoses — Court satisfied that the evidence establishes the mental health and cognitive impairment defence Legislation Cited: Evidence Act 1995 (NSW), s 80 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, 28, 31, 34, 85, 156, 157 Cases Cited: Hawkins v The Queen (1994) 179 CLR 500; [1994] HCA 28 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 R v Fleming (Special Verdict) [2023] NSWSC 561 R v Holmes [2021] NSWSC 1325 R v Jenkins (1963) 64 SR (NSW) 20 R v Lambros [2023] NSWSC 462 R v Rodrigues [2010] NSWSC 198 R v Sands [2021] NSWSC 1325 Category: Principal judgment Parties: Rex (Crown) Thi Bic Huynh (Defendant) Representation: Counsel: A Robertson (Crown) A Parsons (Defendant) Solicitors: Director of Public Prosecutions (NSW) (Crown) File Number(s): 2021/87972 Publication restriction: Section 15A(1) Children (Criminal Proceedings Act) 1987 NSW. JUDGMENT 1. On 4 November 2022, Thi Bic Huynh was arraigned before Wilson J on indictment charging her with the murder of Quo Dung Bui, her husband, in Bankstown on 28 March 2021. She entered a plea of not guilty. General legal principles 1. At a directions hearing before me on 12 April 2023, the accused and prosecutor agreed the matter should proceed by s 31 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("MHCIFPA"). They agreed the proposed evidence establishes the mental health impairment defence: s 31(a) and s 28 MHCIFPA. The accused is legally represented and therefore the only issue is whether the Court, after considering the proposed evidence, is satisfied that the mental health and cognitive impairment defence is established: ss 31(b) and (c) MHCIFPA. I conducted the hearing for this purpose earlier today. 2. The application of s 31 MHCIFPA has been considered and described in various judgments of this Court: R v Sands [2021] NSWSC 1325 at [4]-[8] (R A Hulme J); R v Lambros [2023] NSWSC 462 at [4]-[7] (Hamil J); R v Fleming (Special Verdict) [2023] NSWSC 561 at [6]-[12] (Wilson J). 3. The starting point is Part 3 of the MHCIFPA which provides the defence of mental health or cognitive impairment. Section 4 defines a 'mental health impairment' in non-exhaustive terms of a disturbance of thought, mood, volition, perception or memory which is clinically significant for diagnostic purposes and which impairs the emotional wellbeing, judgment or behaviour of the person. The disorders that may give rise to the impairment pertinently include an anxiety disorder such as Post Traumatic Stress Disorder and an affective disorder such as Major Depression: s 4(2)(a) and (c) MHCIFPA. 4. The test for making good the mental health and cognitive impairment defence is prescribed by s 28 MHCIFPA. There are two limbs to establish the defence; each going to the mens rea of the alleged offence. The defence is established if the person had either, or both, a mental health and cognitive impairment that had the effect that the person: did not know the nature and quality of the act (first limb) or did not know the act was wrong (second limb): ss 28(1)(a) and (b). In the present case, I am concerned with the mental health, and not the cognitive, impairment aspect of the defence. Only the second limb is relevant. There is no question that the accused knew the nature and quality of her act of stabbing Mr Bui. For second limb, wrongness is concerned with whether the accused knew her act was morally wrong, rather than against the law. The defence is established if it is proved on the balance of probabilities rather than beyond reasonable doubt: s 28(2) MHCIFPA. 5. By dint of s 30 MHCIFPA, there is a third category of available verdict in addition to verdicts of "guilty" or "not guilty", referred to as a "special verdict". The special verdict is available only if the s 28 defence is established. Its effect in the present case is that the fatal act of stabbing Mr Bui is proven beyond reasonable doubt, but the accused is not criminally responsible by reason only of the establishment of the mental impairment defence. 6. Pursuant to s 31 MHCIFPA, the task currently at hand, requires the Court, rather than the jury, to decide whether the s 28 defence is established. This question can arise for decision "at any time in the proceedings (including before the jury is empanelled)". However, the hearing is not a judge alone trial: R v Holmes [2021] NSWSC 1325 at [4] (RA Hulme J). The Court's power to decide the question arises only because the parties have agreed that the proposed evidence establishes the defence: s 31(a). The Court is still required to be satisfied on the balance of probabilities after considering the evidence that "the defence is so established": s 31(c). 7. The parties rely on the following proposed evidence (Exhibit A, 1-5): 1. an agreed statement of facts signed by the accused and prosecutor respectively on 31 July 2023 and 1 August 2023 ("ASOF"); 2. expert reports of Dr Olav Nielssen dated 6 October 2021 and Dr Adam Martin dated 14 March 2022 and a supplementary report of Dr Martin dated 21 October 2022. I have also had the benefit of counsel's written (MFIs 1 & 2) and oral submissions. While the decision is for me alone the agreement of experienced counsel and solicitors is not irrelevant. 1. When considering the proposed evidence, I will bear in mind Walsh J's description in R v Jenkins (1963) 64 SR (NSW) 20 at 31, that if it is shown that two doctors not only come to the same conclusion, but provide like reasons for it which "clearly lead to that conclusion…the right decision…must be that the defence has been made out". Also relevant is Johnson J's expression in R v Rodrigues [2010] NSWSC 198 at [45], in considering authorities relating to juries use of expert evidence, that the Court is not bound to accept and act upon expert evidence, but nor may it be disregarded capriciously. Unanimous expert opinion ought only be rejected where there is evidence which casts doubt upon its reliability, say because the assumptions upon which the opinions are based do not accord sufficiently with the facts proved by the other evidence. Therefore, the concurrence of two experts on issues relating to their field of speciality, in the absence of contradictory objective evidence or illogicality, will have strong probative force. The alleged offending Background 1. By her agreement under s 31 and through her counsel, Mr Parsons, the accused admits that by her voluntary act of inflicting a single stab wound in Mr Bui's neck as he lay sleeping on 28 March 2021 she caused his death. This is the act to be proven for the purpose of the special verdict and if I am satisfied the proposed evidence establishes the defence, I will find that fact proven beyond reasonable doubt. But it is necessary to form an understanding of the primary facts before considering the expert evidence. 2. Ms Huynh was born in June 1983 and Mr Bui in January 1972. They formed a de facto domestic relationship together from about 2004. In January 2005, they had their first son and a second son in May 2011. Ms Huynh also has a daughter from an earlier relationship, born in March 2001. The alleged offending took place in March 2021. At that time Ms Huynh was aged 37 and Mr Bui aged 49 (ASOF, [1]-[4]). Mr Bui's domestic violence 1. The factual matrix leading to Mr Bui's death commences with the consideration that he was a perpetrator of domestic violence. I accept that this will be hard for his friends and extended family to accept. This is not unusual. It is the experience of the ordinary courts that most, not all, domestic violence occurs behind closed doors and friends and family will be unaware of it. It is also common, as happened here, that even when the matter is reported to police and action is taken, the victim of domestic violence is anxious to reconcile in the hope that the erring partner will reform, for the good of the family. I should not be taken as suggesting that domestic violence of itself and without more justifies murder. In the present case no question of self-defence or extreme provocation has arisen. 2. It is agreed that Mr Bui was verbally and physically violent to the accused, her daughter and their elder son (ASOF, [7]). That domestic violence is marked by specific incidents that were at times reported to the police and some of which is also elicited in the histories obtained by the experts. 3. On 20 December 2008, a fight occurred between the couple when Ms Huynh did not want to accompany Mr Bui to visit his brother. Mr Bui slapped Ms Huynh's head and face several times, causing bruising to her right eye. She was pushed the floor, injuring her left elbow. Whilst Ms Huynh was on the floor, Mr Bui stomped on her left thigh area. He then grabbed her hair and dragged her across the floor and threw her onto a chair. He threatened to burn her car. Police were called and Mr Bui was arrested and charged. An Apprehended was put in place (ASOF, [14]-[15]). 4. On 24 May 2009, Mr Bui complained a colleague was reported by the colleague's wife to police for domestic violence. Mr Bui said that if he hit his wife and his stepdaughter saw it and reported it to police he would kill her. The confrontation appears to have intensified when Ms Huynh said her daughter would report any such violence. Mr Bui swore at the accused and said, "… if she did and grows up disrespectful, I will kill her." 5. On 25 May 2009, Mr Bui was verbally abusive to Ms Huynh. He swore at her, called her a "stupid woman" and accused her of hanging "around all day doing nothing and have strangers over". Mr Bui grabbed a long steel spoon, raising it above his head as he approached the accused, screaming at her as his face turned red. Frightened, Ms Huynh ran upstairs. Mr Bui seemed to calm down after 20 minutes passed. The next day Ms Huynh provided a statement to police. 6. On the evening of 17 March 2014, Ms Huynh was in bed using her phone. The accused entered and asked for her phone. She refused and he yelled at her, he snatched it from her and said, "I should throw it at you". Ms Huynh was scared as Mr Bui had assaulted her before when he was angry. She called the police. On this occasion, as she also did on her further calls to police on 24 May 2014 and 2 July 2014, she told police she did not fear for her safety but either wanted him to leave the property or not return to it (ASOF, [17]-[19]). I interpolate that downplaying her apprehension is also a familiar response by victims of domestic violence or abuse, including according to expert evidence in this case. 7. On 2 July 2015, Mr Bui and Ms Huynh had an argument during which Mr Bui grabbed her by the throat, causing her pain. She gave a statement to the police. Mr Bui denied grabbing her by the throat and claimed they had merely argued about a water machine. 8. In or around 2018 or 2019, Mr Bui and Ms Huynh had a serious argument arising from Mr Bui's concern she was spending too much money. The argument escalated to their bedroom, where they locked the door. Ms Huynh was screaming. Their elder son banged the door, but it remained shut; he punched a hole in the door. Mr Bui opened the door and tried to punch his son, who put his arms around his father and dragged him away from Ms Huynh. 9. What appears to be the most serious instance of domestic violence occurred on 19 December 2020 just before the elder son's sixteenth birthday. He was in the kitchen with his parents whilst they were arguing about the purchase of a car for him. Mr Bui turned to him and yelled at him. He grabbed a knife from the knife rack and placed the tip lightly against his son's neck and said, "if you don't stop talking I'm going to stab you". Ms Huynh tried to calm Mr Bui down. She gave a statement to police and Mr Bui was arrested. He denied the allegations. Incidents involving Ms Huynh's daughter 1. There were specific incidents of domestic violence by Mr Bui against his stepdaughter. This seems to be the reason that she moved out of home at around aged 17 sometime in 2017. The violence included physical violence such as hitting her, slapping her and pulling her hair. The violence was such that it left bruises. On one occasion, the stepdaughter would not eat her dinner. Mr Bui grabbed her and hung her upside down from a door (ASOF, [8]). 2. On 26 October 2014, while she was in high school, Mr Bui struck his stepdaughter across the legs and bottom with a vacuum stick, causing bruises. He was angry that she was going out with her friends. 3. On 30 December 2015, when his stepdaughter was nearly 15, Mr Bui argued with her about spending $200 of her mother's money on shoes. Mr Bui slapped her face and pulled her hair. He grabbed both sides of her neck with such force that she was lifted off the ground. She had redness and swelling under her eyes from the slaps. Ms Huynh reported the incident to the police. Mr Bui admitted that he was angry and hit his stepdaughter in the face. He was arrested and charged with common assault. 4. There was also an occasion in 2017, when Mr Bui had drunk too much and made his stepdaughter feel sexually uncomfortable. Mr Bui stood behind her and squeezed her neck, shoulders and arms for a few minutes. After which, Ms Huynh accosted the deceased. An argument ensued. Mr Bui slapped his stepdaughter in the face either once or twice and shouted at their younger son. The stepdaughter moved out of the home a few days later. On 21 December 2020, Ms Huynh reported the touching to police. She reported that Mr Bui had looked at his stepdaughter "in a bad way". The stepdaughter did not want to provide a statement and told police that Mr Bui touched her shoulder and face and it had made her feel uncomfortable. Mental illness 1. The evidence of Ms Huynh's mental illness commences in 2021. There is a detailed summary in the expert evidence and in particular in the report of Dr Nielssen. 2. On 12 March 2021, Ms Huynh attended Bankstown Hospital. The Doctor's opinion was that she suffered from anxiety. She was stressed because her son was sick two weeks ago, had stopped eating and drinking and became dizzy. She reported insomnia, waking with palpitations and "less air" in the brain. She had no prior history of anxiety or depression. The following day her usual doctor, Dr Nguyen prescribed 10mg of Endep for depression, half a tablet to be taken in the evening. 3. On 26 March 2021, a different Dr Nguyen, prescribed 10mg Loxalate also for depression, 1 tablet to be taken in the morning. She did not take this medication. Mr Bui's death 1. The day of 27 March 2021 appeared to be an ordinary day for Ms Huynh and her family. In the afternoon she telephoned her elder son to check on him and tell him that she was in the city with Mr Bui. In the evening she and Mr Bui returned home. To their sons they appeared in a good mood and were laughing. The family obtained a takeaway meal they ate together. Mr Bui retired early. Ms Huynh went to bed soon after, as did their younger son whose bed was in his parents' room. 2. Ms Huynh awoke around 6:30 am on 28 March 2021, as did the younger son who got up to play computer games in the lounge room. Ms Huynh arose went to the kitchen and took some of her medication. She ate something and returned to the bedroom. The elder son also got up briefly before returning to his separate room. 3. Shortly after returning to the bedroom, Ms Huynh stabbed Mr Bui in the right side of his neck with a kitchen knife. The knife penetrated the deceased's jugular vein causing serious fatal bleeding. Moments later, this caused Mr Bui's death. The stab also partially severed Mr Bui's spinal column, or perhaps the spinal cord. After stabbing Mr Bui, Ms Huynh attempted suicide by overdosing her medication. 4. At around 11:30 am, her younger son observed to his brother that it was "weird" that his parents were still asleep and had not organised his breakfast. His elder brother told him to get something himself. At around 1:30 pm, unsteady on her feet and mumbling, Ms Huynh emerged from the bedroom and repeated "call the ambulance, I feel sick". She also said, "look Dad's dead" (ASOF, [46]). The elder son dialled triple zero for emergency services. He was assigned what must have been the very difficult task of attempting CPR on his father under the operator's instructions. He saw the hole in his father's neck and the large amounts of blood. He told the operator it was too late. Either in his father's hand, or nearby, he saw the knife. 5. When police spoke to Ms Huynh on 29 March 2021, she said when she looked at her husband when he was asleep, she had bad memories of him hitting her and the kids and threatening to kill her and the kids (ASOF, [60]). She then went to the kitchen and grabbed a knife. She said she did not know how she came to get the knife, that she was having flashbacks, and then she went and got the knife from a bottom drawer in the kitchen. She returned to the bedroom and knelt over Mr Bui for about 5 minutes. She did not want to stab him and felt sorry for him. She was really scared and then stabbed him because in the past he hit her and had strangled her until she became unconscious. She said at the time she could not control herself, so she just stabbed him. The expert evidence History 1. The histories obtained by the experts are generally consistent with one another and Ms Huynh's account. They are pertinent regarding the instances of family violence. 2. Ms Huynh was born in Vietnam. She arrived in Australia at about aged 12. She considered that her childhood was relatively normal. She struggled with English and finished school in Year 9 before qualifying and working as a hairdresser. 3. Ms Huynh reported that her husband had been abusing her and her children "for a long time…for seventeen years…" (Dr Nielssen report, p 3). This included referring to the specific incident of Mr Bui threatening their elder son with a knife and also the abuse toward and inappropriate touching of his stepdaughter (Dr Nielssen report, p 4). 4. Dr Martin described, from his review of the materials with which he was supplied "a background of relationship dysfunction between [Ms Huynh] and [Mr Bui]." Though from the material he observed conflicting accounts between witnesses. Mr Bui's family does not seem to have agreed that he was violent (Dr Martin report, p 6 [17]-[20]). Dr Olav Nielssen 1. Dr Nielssen's diagnosis was one of Major Depression, in partial remission (Dr Nielssen report, p 12). In reaching his diagnosis, the expert considered Ms Huynh's reports of interrupted sleep, loss of appetite and weight, negative ruminations, severe anxiety and a preoccupation with physical symptoms. He calculated that in the weeks leading up to 28 March 2023, Ms Huynh had presented to Bankstown Hospital on 7 occasions with symptoms that were attributed to anxiety. She was diagnosed with depression by her general practitioner, Dr Nguyen, and prescribed with an antidepressant, and with another antidepressant with sedating properties by another general practitioner also called Dr Nguyen. He also noted from the documents that on the day of her arrest, when she was taken to the hospital, Dr Bhattacharyya, a specialist psychiatrist, diagnosed PTSD as well as depression on a background of chronic domestic violence (Dr Nielssen report, pp 12-13). 2. Dr Nielssen also expressed the view that Battered Women's Syndrome (BWS) and Stockholm Syndrome were relevant. While these were not medical diagnoses, the expert explained, "they are recognised patterns of behaviour in victims of abuse…". Ms Huynh described many of the features of BWS to a social worker at Bankstown hospital who she spoke to on 18 March 2021, about ten days prior to stabbing Mr Bui (Dr Nielssen report, p 13). 3. Dr Nielssen's view is that Ms Huynh's diagnosis of depressive illness resulted in her having an abnormal state of mind. This affected her perception of the need to protect herself and her children from the abuse and violence of Mr Bui. As the doctor puts it, "[h]er depressed and anxious mood, as well as the experience of recurrent physical abuse, including plausible threats [from Mr Bui] to kill [her] and her two sons, is likely to have contributed to her perception of threat from her husband" (Dr Nielssen report, p 13). Dr Nielssen's opinion was that Ms Huynh's depression, and the effects of Mr Bui's behaviour and threats, are likely to have deprived her of the ability to recognise that her actions were morally wrong. It seems to me therefore, that Dr Nielssen's opinion is in general terms that Ms Huynh's depression impaired her ability to properly reason which altered her perception of the risk posed by Mr Bui to her and her children based on the previous history of domestic violence, and this impaired her ability to reason with a moderate degree of sense and composure about whether it was wrong to stab Mr Bui on 28 March 2023. Dr Adam Martin 1. Dr Martin diagnosed Post Traumatic Stress Disorder ("PTSD") and Major Depressive Disorder at the time of the alleged offending (Dr Martin Report, p 10 [28]). Very similarly to Dr Nielssen, Dr Martin's view was that it is likely that Ms Huynh was "was experiencing sustained depressive and anxious symptoms in the context of having been exposed to threats to herself" and I would also add, to her children. The expert's view continues, "and in my view, it is plausible and probable that she had experienced features of posttraumatic stress disorder such as re-experiencing phenomena, hyper-arousal and emotional dysregulation" (Dr Martin Report, p 10 [28]). Dr Martin reported that his view was consistent with Ms Huynh's reported depressive and anxious phenomena, including, low mood, sleep disturbance, tearfulness, fatigue and symptoms of dizziness, losing her balance and breathing problems (Dr Martin Report, p 11 [29]). 2. Dr Nielssen considered that Ms Huynh's Major Depression was in partial remission and that due to her family connections and support, he assessed her as having a reasonable long-term prognosis (Dr Nielssen Report, pp 12 and 14). Dr Martin's view was that Ms Huynh is no longer suffering a major mental illness (Dr Martin Report, p 11 [30]). 3. In his supplementary report, Dr Martin addresses his opinion as it relates to the terms of s 28 MHCIFPA. He affirms his opinion that more probably than not, at the time of the offending, Ms Huynh was suffering PTSD and Major Depression, in the context of her marital situation and experience of violence and threats (Dr Martin Supplementary Report, p 4 [9]). So far as it applies to the mental health impairment defence, Dr Martin expressed that (p 5 [10]): "[f]rom a clinical perspective, in my view, the proposition that she felt trapped and was prone to dissociation…associated with fear, resulting in anxiety and mood disturbance would have resulted in severe distortion of thoughts and impaired judgment, [for instance around her ability to consider appropriately other potential options available to her]. 1. In this context, he otherwise wrote, '[e]ssentially, I agree with the findings of Dr Nielssen'. Consideration 1. I direct myself that where the mental impairment defence has been raised, the question of the state of mind of the accused when the fatal act was done is deferred. In Hawkins v The Queen (1994) 179 CLR 500; [1994] HCA 28 at 517, the High Court pointed out that there are two basic questions in a criminal trial (which this is not). They are "what did the accused do? And "is [she] criminally responsible for doing it?" Their Honours went on to say, "those questions must be resolved … before there is any issue of the specific intent with which the acts are done. It is only when those basic questions are answered adversely to an accused that the issue of intent is to be addressed." As is well-known, the intent necessary as an element of the crime of murder is the actual specific intent to either kill or cause really serious bodily injury. But those questions are not relevant for me to decide on hearing under s 31 MHCIFPA. If I am not satisfied that the proposed evidence establishes the mental impairment defence, all questions of Ms Huynh's guilt and innocence of Mr Bui's murder, including the question of intent, will be for the jury empanelled to try her. 2. It also follows from this, as may be obvious, that a person who is entitled to the benefit of the mental impairment defence may have killed the victim with the requisite intent for murder but that circumstance does not disentitle them from the benefit of the defence. The question of intent is simply irrelevant to the application of the law relating to the mental health impairment defence. 3. As I have already said, the statutory question of whether Ms Huynh did not know that her act of fatally stabbing Mr Bui was wrong, concerned with moral, not legal, wrongfulness. In terms of the statute the question is whether I am satisfied on the balance of probabilities that Mrs Huynh could not reason with a moderate degree of sense and composure about whether her act, as perceived by reasonable people, was wrong: s 28(1)(b). The expert forensic psychiatrists are agreed that Ms Huynh was labouring under a mental health impairment when she stabbed Mr Bui. The question is whether her mental health impairment was then serious enough to have that effect. 4. As I have already said, the standard of proof is on the balance of probabilities, not the criminal standard of beyond reasonable doubt. The balance of probabilities is the usual civil standard of proof. It is not as stringent or exacting as the criminal standard. All that the balance of probabilities require is that the inference that Mrs Huynh did not know her act was morally wrong might reasonably be considered to have some greater degree of likelihood than any competing inference which may otherwise be available on the evidence: Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 at 305. 5. While the question is one for me and not for the experts, when two appropriately qualified, experienced and I might say well known, experts agree in their opinion on the ultimate question to be decided (s 80 Evidence Act 1995 (NSW)), I would need a good reason for rejecting their joint opinion. I am not satisfied of any such good reason. This is not to delegate my responsibility to the experts nor reverse the onus of proof, it is simply to reflect the law I have already explained: as Walsh J said in R v Jenkins (see [9]), if it is shown that two doctors not only come to the same conclusion, but provide like reasons for it, which "clearly lead to that conclusion…the right decision…must be that that the defence has been made out". 6. There is no real difference between Dr Nielssen and Dr Martin. Dr Nielssen favoured a diagnosis of major depression with prominent anxiety symptoms, which resulted in an abnormal state of mind that had a severe effect upon her perception of the events and her capacity to control her actions. Dr Martin considered that the clinical material with which he had been provided supported Ms Huynh's narrative provided to him in the clinical setting. In his opinion, as I have already stated, Ms Huynh had "diagnoses of post traumatic stress disorder and major depressive disorder at the time she stabbed Mr Bui. These conditions resulted from the long pattern of domestic violence to which she and the children were subjected to at the hands of Mr Bui. He regarded Ms Huynh as experiencing the features of post traumatic stress disorder at the time she stabbed Mr Bui "such as re-experiencing phenomena, hyperarousal and emotional dysregulation" (Dr Martin 14 March 2022; p. 10), as I have already said. He also said that it is not uncommon in situations of domestic violence for victims to feel trapped in the relationship. 7. To my mind, those aspects of the re-experiencing phenomena – "flashbacks" – associated with PTSD fit in with Mrs Huynh's description of her state of mind in her police interview on 29 March 2021. Indeed, it is apparent to me from reading the whole of the reports of both experts, that they are very largely in lockstep in explaining the effect of her mental health impairment upon her, notwithstanding the differences in diagnosis emphasis, that there is really no substantial difference between them. Indeed, Dr Martin expressly agreed with Dr Nielssen's findings (Dr Martin 21 October 2022; p. 5). 8. Although neither Dr Nielssen nor Dr Martin for the purpose of s 4 MHCIFPA said whether the relevant disturbance of thought or perception suffered by Ms Huynh was "significant for clinical diagnostic purposes", I have no difficulty inferring that that is the more likely conclusion favoured by the evidence. Quite clearly from at least early March 2021, the symptoms of her mental health impairment required frequent medical attention both at the emergency department of her local hospital and upon her usual general practitioner. The medical practitioners considered her condition was such as to require psychotropic medication and such was prescribed. She seems to have been slow on the uptake of the medication, but many people are reluctant to take anti-depressives. For present purposes, I am well satisfied that the disturbance of her mental processes was clinically significant. 9. As I have already pointed out, Dr Nielssen expressed the view that Ms Huynh's then abnormal state of mind was "likely to have deprived her of the ability to recognise that her actions were morally wrong". I consider now that Dr Nielssen is using that expression in the statutory sense I have set out. 10. Dr Martin directed himself directly to the terms of the statute in expressing the following conclusion (Dr Martin supplementary report, p 5), earlier summarised: "… In my view, it can be argued reasonably that she was unable to [appreciate] the wrongfulness of the alleged offending, in that she was likely to have been unable to reason with moderate composure about whether the act, as perceived by reasonable people, was wrong. This is an ultimate issue for the Court to determine on the balance of probabilities. From a clinical perspective, in my view, the proposition that she felt trapped and was prone to disassociation … associated with fear, resulting in anxiety and mood disturbance would have resulted in severe distortion of thoughts and impaired judgment …" See also [43] above. 1. In applying the standard of proof, I have borne in mind that the sanctity of human life is fundamental community value upheld and bolstered by the criminal law. Even so, it remains important for me, having reviewed and considered the proposed evidence, to decide whether it actually persuades me, on the balance of probabilities, that the defence has, indeed, been established. I have also borne in mind that the wrongful taking of life ordinarily and emphatically requires retribution, denunciation and vindication of the injury suffered by the community and the victim's family. These objects can only be achieved when offenders are convicted and punished. The taking of Mr Bui's life is the beyond the reach of this principle only if the mental health impairment defence is made out. Bearing this last principle in mind, and having given the matter the most anxious consideration, I am satisfied on the whole of the evidence before me, including the opinions of the experts I have discussed that the proposed evidence does establish the mental health impairment defence and that under s 30 MHCIFPA I am required by law to enter a special verdict of act proven but not criminally responsible in this case. Before formally expressing that verdict as an order of the Court, I need to say something about the effect of a special verdict. 2. Section 33 MHCIFPA states the Court's powers to make consequential orders on the return of a special verdict. One of the options available is an order for the unconditional or conditional release of Ms Huynh from custody. In this regard, I record that Dr Nielssen has expressed the opinion that Mrs Huynh's condition is in remission and, "given her background and the unique circumstances of the offence", he does not believe "she would present a danger to herself or any member of the community if she were to be released on bail. That opinion was expressed as long ago as 6 October 2021, but may be taken as supporting Ms Huynh's conditional release from custody. 3. While Dr Martin also accepted that there had been significant improvement in Ms Huynh's condition, he considered it important that there be ongoing detailed forensic psychiatric assessment and rehabilitation, "preferably in a secure hospital setting prior to community placement". 4. With respect to Dr Nielssen, I prefer the opinion of Dr Martin, given especially that neither Dr Nielssen nor Dr Martin has been directly involved in Ms Huynh's treatment and have only seen her on limited occasions for the purpose of expressing a medico-legal opinion. I reiterate that Dr Nielssen has not seen Ms Nguyen since October 2021. I am not satisfied that it's appropriate to make an order for Ms Huynh's release into the community at this stage. This being so, under s 34 MHCIFPA, I am bound to refer her to the Mental Health Review Tribunal, who, under the statute, will assume responsibility for her management. I observe that before pronouncing final orders, I am empowered to obtain a risk assessment report from an independent forensic psychiatrist not involved in Ms Huynh's treatment. However, I do not think that the appropriate way to proceed. She has been in custody now for a little over 2 years and 4 months. Under the care and responsibility of the Mental Health Review Tribunal, she will be reviewed at least every six months. The Tribunal is constituted by three members, being a judicial officer or former judicial officer, a forensic psychiatrist or psychologist and a community member with appropriate qualifications and experience relating to the management of people with mental health impairments. 5. While under the Tribunal's supervision, it may make orders for Ms Huynh's continued detention, care or treatment in a hospital or prison. If the Tribunal decided in accordance with the statutory regime that it is appropriate and safe to release the accused, it has power to make that decision subject to a range of conditions as it sees fit, for example by appointing professional care workers for the accused's care, conducting periodic reviews, and making orders regarding medication, accommodation and living conditions: s 85 MHCIFPA. Members of Mr Bui's extended family may register on the Victim's Register established by s 156 MHCIFPA. Registered victims are entitled to receive notification of significant developments in the course of the Tribunal's management of a forensic patient, which Ms Huynh becomes by virtue of the special verdict. If they chose to register, the views of family victims will at least be considered by the Tribunal before it exercises its powers: s 157 MHCIFPA. Orders 1. My orders are: 1. In relation to the charge of murder contained in the indictment, direct entry of a special verdict of the act of fatally stabbing Quoc Dung Bui is proven, but Thi Bich Huynh is not criminally responsible; 2. Dispense with the jury summoned for the trial; 3. Under s 34 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), Thi Bich Huynh is referred to the Mental Health Review Tribunal; 4. Under s 33(1)(b) of the said Act, order that Thi Bich Huynh is to be detained at such place and in such manner as the Mental Health Review Tribunal determines until her release by due process of law; 5. Direct: 1. The Registrar to notify the Minister for Health, as soon as practicable of the making of these orders; 2. The Registrar is to notify the Mental Health Review Tribunal, as soon as practicable of the making of these orders and is to provide to that tribunal the following documentation: 1. a copy of the Court's reasons for verdict and for making these orders; 2. copies of Exhibit A (1–5). ********** Amendments 09 August 2023 - Paragraph [54] Second sentence - after the words proposed evidence, the words "to decide whether" added. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 August 2023